Duty to the Public, the State and Society

The duty is positive, not merely negative. He must so conduct the prosecution that it does not lead to a wrongful conviction, and he must scrupulously avoid suppressing material capable of establishing innocence. That is an obligation to produce evidence that damages his own case.

A prosecutor is therefore not "counsel for the victim". He must be fair to the accused, and he cannot take instructions from a complainant as if the complainant were his client; rule 19 confines him to the instructions of his client or its authorised agent.

The advocate as an officer of the court

The phrase is defined in chapter [What This Subject Is, and Why a Lawyer's Conduct Is Regulated by an Act of Parliament] and carries a public duty here.

The court cannot check everything. A judge takes on trust that the authority cited exists and says what it is said to say, that the document produced is genuine, and that the instructions given are the client's. If advocates were unreliable, the system would have to verify everything and would stop.

So the public interest in honest advocacy is not an ideal, it is structural. It is why misleading the court is treated more severely than a comparable dishonesty elsewhere, as Module III shows when it reaches misconduct towards the court, and it is why In Re: Sanjiv Datta, (1995) 3 SCC 619, contains the Supreme Court's statement of the standards the profession is expected to maintain and of the consequences of a decline in them.

The duty not to obstruct the administration of justice

Two things a student can point to concretely.

Strikes. In Ex-Capt. Harish Uppal v. Union of India, AIR 2003 SC 739, the Supreme Court held that lawyers have no right to strike or to give a call for boycott, not even a token strike, that lawyers holding vakalatnamas cannot fail to attend, and that all lawyers must boldly refuse to abide by such a call. The reason is precisely a duty to the public: the person harmed by a strike is the litigant, not the State.

Fomenting litigation. Rule 18 forbids an advocate being a party to fomenting litigation at any time. Manufacturing disputes wastes the courts' time and the public's money, and it is the vice behind the touting provisions in section 45A of the Advocates Act as well.

What this duty does NOT mean

Three limits, because a student asked to write on "duty to society" tends to write an essay and lose marks.

It does not override the duty to the client. Rule 15 requires the advocate fearlessly to uphold his client's interests and to defend an accused regardless of his personal opinion as to guilt. An advocate who threw a case because he thought society would be better served would be committing serious misconduct.

It does not make the advocate a judge of the merits. The cab-rank principle in rule 11 exists so that unpopular parties are represented, which is itself a service to society.

It is not a general licence to act in the public interest. Where an advocate believes his client's conduct is improper, his remedies are the ones the rules give: restrain the client under rule 4, refuse to act if he persists, and withdraw under rule 12. Not disclosing the client's confidence, which rule 17 and section 132 of the Bharatiya Sakshya Adhiniyam 2023 forbid.

A worked example

Deepa is a Special Public Prosecutor in a trial arising from a factory fire. Five things happen.

The investigating officer gives her a statement from a witness saying the accused manager was not on the premises that day. Rule 16 requires her scrupulously to avoid suppressing material capable of establishing the innocence of the accused. She must bring it out.

The complainant's family instructs her to press for the maximum sentence and to withhold the statement. She may not take instructions from them at all: her client is the State, and rule 19 confines her to the instructions of her client or its authorised agent.

She is asked to give a press interview about the strength of the case. Rule 36 forbids interviews not warranted by personal relations and furnishing or inspiring newspaper comments, and a prosecutor commenting on a pending trial risks prejudicing it, which is criminal contempt under section 2(c) of the Contempt of Courts Act 1971.

The local Bar Association calls a one-day strike over an unrelated grievance and the trial is listed that day. Harish Uppal requires her to attend, and requires all lawyers boldly to refuse to abide by the call. The exception is confined to the rarest of rare cases where the dignity, integrity or independence of the Bar or Bench is at stake, and even then needs the President of the Bar to consult the Chief Justice or District Judge.

One of the accused is unrepresented and cannot afford a lawyer. That is where rule 46 and the legal aid machinery come in, and it is the subject of chapter [Duty to Render Legal Aid: Rule 46, Article 39A and the Legal Services Authorities Act]. Deepa's own duty under rule 16 is unaffected: she must still conduct the prosecution so that it does not lead to the conviction of the innocent.

Quick revision

• There is no Bar Council Section headed "duty to public, state and society". The sources are the Preamble, rule 16, rule 46, and the advocate's position as an officer of the court.
• Preamble: the advocate is an officer of the Court, a privileged member of the community, and a gentleman. The monopoly conferred by sections 29 and 33 is what makes the outward duty real.
• Rule 16: a prosecutor shall so conduct the prosecution that it does not lead to conviction of the innocent, and shall scrupulously avoid suppressing material capable of establishing innocence. A duty owed to the accused, who is not his client.
• Rule 19 confines an advocate to the instructions of his client or his authorised agent, so a prosecutor cannot be directed by a complainant.
• Legal aid is a statutory function: section 6(1)(eee) for a State Bar Council, section 7(1)(ib) for the Bar Council of India, and section 9A for legal aid committees of five to nine members.
• Rule 18: no fomenting litigation. Harish Uppal: no strikes, because the person harmed is the litigant.
• Limits: the duty does not override rule 15, does not make the advocate a judge of his client's merits, and does not licence disclosing a client's confidence.

Test yourself

1. Which Section of the Bar Council rules deals with the duty to the public? None. The heading is MU's grouping. The duty is drawn from the Preamble, rule 16, rule 46, the advocate's position as an officer of the court, and the legal aid functions in sections 6(1)(eee), 7(1)(ib) and 9A of the Advocates Act.

2. Why is a prosecutor's duty different from that of any other advocate? Because his client is the State, whose interest is not conviction but that the guilty are convicted and the innocent are not. Rule 16 accordingly requires him so to conduct the prosecution that it does not lead to the conviction of the innocent, and scrupulously to avoid suppressing material capable of establishing innocence.

3. What does the Preamble's phrase "a privileged member of the community" import? That the profession's monopoly, conferred by sections 29 and 33 and protected by sections 45 and 45A, is a privilege granted by the State, and that a privilege carries duties owed outward to the public that granted it.

4. Give two concrete instances of the duty not to obstruct the administration of justice. The rule against strikes in Ex-Capt. Harish Uppal v. Union of India, because the person harmed by an abstention is the litigant; and rule 18, which forbids an advocate at any time being a party to fomenting litigation.

5. May an advocate act against his client's instructions because he believes society would be better served? No. Rule 15 requires him fearlessly to uphold his client's interests and to defend an accused regardless of his personal opinion as to guilt. His remedies where the client acts improperly are to restrain him under rule 4, refuse to act if he persists, and withdraw under rule 12 with notice and a refund.

6. Can a complainant instruct the public prosecutor? No. Rule 19 provides that an advocate shall not act on the instructions of any person other than his client or his authorised agent, and the prosecutor's client is the State.